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Can FBI Be Held Liable For Targeting Irvine, Calif., Muslims For Surveillance?

By Maura Dolan, Los Angeles Times (TNS)

LOS ANGELES — Craig Monteilh told the imam that he wanted to embrace his French and Syrian heritage and convert to Islam.

Monteilh adopted an Islamic name, donned Muslim robes and a skull cap, and attended prayers vigilantly. The Islamic Center of Irvine, in Orange County, embraced him — until he began talking of violent jihad.

Congregants reported him to the FBI and Irvine police, and then obtained a restraining order against him. Only later did they discover Monteilh was working for the FBI.

A federal appeals court is now considering whether the FBI can be held liable for allegedly indiscriminately targeting Muslims for surveillance. If the court decides the FBI cannot defend itself without revealing state secrets, the court likely would uphold the dismissal of a class-action lawsuit brought by Southern California Muslims.

The review by the 9th U.S. Circuit Court of Appeals comes at a time of heightened fear of terrorism and incidents of backlash against innocent Muslims.

Judge Marsha Berzon, in a hearing this month, acknowledged the sensitivity of the matter as she struggled to understand what constituted a state secret. The state secrets doctrine bars litigation of a case if it would expose or threaten to expose matters of national security.

“I just am having real trouble seeing where the line is drawn in this very difficult situation we are in now,” Berzon, a Clinton appointee, told a government lawyer.

The government argued it could not defend itself without disclosing state secrets. U.S. District Judge Cormac J. Carney agreed with the government in 2012, dismissing the bulk of the lawsuit on the grounds it would require disclosure of matters vital to national security. Carney reviewed classified information before his decision.

The Southern California Muslim community, represented by the ACLU of Southern California, believes the FBI targeted people solely because of their religion and should be held accountable.

Muslim leaders complained that the spying mission eroded trust in law enforcement at a time when the government needs help from the Muslim community to fight terror.

“The fundamental question is will we be viewed as partners or suspects?” said Edina Likovic, speaking for the Los Angeles-based Muslim Public Affairs Council. “The fear here is that we are being treated publicly as partners and privately as suspects.”

About 500,000 Muslims live in Southern California, with more than 120,000 in Orange County, the second-largest population of Muslims in the United States.

Monteilh, who had a falling out with the FBI, has been working with the ACLU.

“I am the principal witness,” said the Irvine resident, 53. “All the information they got came from me.”

Monteilh said the FBI paid him $177,000 to infiltrate about 12 mosques in Orange, Los Angeles and San Bernardino counties over the course of 14 months, starting in June 2006. He said his job was to gather as many cellphone numbers and email addresses as possible and to find Muslims who could be compromised because of immigration, sexual or business issues.

Posing as a fitness consultant, Monteilh frequently worked out with Muslims at the gym and secretly recorded them, he said.

“This surveillance was so fruitful that Monteilh’s handlers eventually told him they were seeking approval to have him open a Muslim gym,” the suit said.

When he agreed to attend prayers at dawn four days a week, he received a pay increase, the suit said. His handlers told him to write down the license plate numbers of the cars in the parking lot, he said.

But at times his devotion raised eyebrows. He attended lessons in Arabic — a language he didn’t speak.

He also appeared to be extremely absent-minded. Congregants remembered that he was forever leaving his keys or his cellphone behind. Monteilh later said his phone and a fob on his keys contained recording devices.

During the hearing, a lawyer for the FBI agents said Monteilh had signed a contract saying he would not leave listening devices unattended. Monteilh said he signed no such contract, and the agents knew what he was doing.

Monteilh said he secretly videotaped Muslims through a camera hidden in a button in the front of his shirt.

His identity was revealed during a court hearing. He had a criminal record, and the FBI helped him get off probation early, according to a court transcript.

Monteilh later accused the FBI of breaking promises to him. The FBI has said it does not target people because of their religion and that Monteilh signed a confidentiality agreement.

Monteilh, who unsuccessfully sued the FBI, said he has no regrets about his undercover work. He learned about FBI techniques and methods and policies and now works as a consultant on counterterrorism, he said. His mission unveiled the government’s scrutiny of Muslims, he said.

“If I didn’t work that case, they would never know they were being spied on 24 hours a day,” Monteilh said.

He said his work identified terrorists overseas, although it did not lead to convictions of local Muslims. Monteilh also said he understands why the FBI conducted the surveillance.

“Let’s face it, they have to,” he said. “That is the only method they can use to be preemptive.”

It could take several months before the 9th Circuit rules.

Berzon was the only one of the three judges on the panel who asked questions during the hearing.

Although she was skeptical of both sides, Berzon told attorneys for the government that their arguments were “circular.”

She also observed that another circuit court had found that the government could not invoke the state secret privilege in a lawsuit unless the secrets were an integral part of the government’s “meritorious defense,” not just a possible defense, an issue a court would have to determine.

“We certainly can’t do that if you can’t tell us your defense,” she said.

©2015 Los Angeles Times. Distributed by Tribune Content Agency, LLC.

Photo: Dressed in his undercover Islamic clothing in a 2009 file image, Craig Monteilh was recruited by the FBI to spy on Muslims. (Gina Ferazzi/Los Angeles Times/TNS)


9th Circuit To Take Up Same-Sex Marriage Bans In Idaho, Nevada, Hawaii

By Maura Dolan, Los Angeles Times

Three federal appeals court judges who have ruled in favor of gay rights in the past are to hear arguments Monday on whether to uphold same-sex marriage bans in Western states.

The U.S. 9th Circuit Court of Appeals judges, randomly selected to consider the appeals, are Stephen Reinhardt, appointed to the court by President Carter, and Marsha S. Berzon and Ronald M. Gould, appointees of President Clinton. They are to hear arguments starting at 1 p.m. PDT on same-sex-marriage cases from Idaho, Nevada and Hawaii.

The court is to video stream the proceedings live over the Internet at Access can be obtained by clicking the website’s link, “Live Oral Arguments.”

Jon W. Davidson, legal director of Lambda Legal, a gay-rights group, said a parade of court decisions this year in favor of same-sex marriage makes the issue “an easy case for the 9th Circuit to decide.”

“I don’t know of any other civil rights issue in America that has seen as rapid a change as this, both in the courts and in public opinion,” Davidson said.

Reinhardt, one of the circuit’s most liberal judges, has written major rulings in favor of gay rights, including one striking down California’s former ban on gay marriage.

Berzon joined Reinhardt in a January decision that said gays could not be excluded from juries because of their sexual orientation. That ruling made it more difficult for governments in Western states to defend laws that discriminate on the basis of sexual orientation.

Gould, the third panelist, wrote a ruling in 2008 that reinstated a lawsuit by a military nurse who was fired under the former “don’t ask, don’t tell” policy.

The court has scheduled an hourlong hearing to review a decision by a federal magistrate in Idaho ordering the state to marry same-sex couples and to recognize out-of-state gay marriages.
That ruling was placed on hold pending the 9th Circuit’s decision.

The Idaho arguments will be followed by a 30-minute hearing on a Nevada federal judge’s decision to uphold that state’s ban on same-sex marriage.

Nevada officials decided not to defend the ban on appeal, leaving arguments to a coalition that sponsored the state constitutional amendment instituting the ban. The 9th Circuit has ordered the parties to argue whether the coalition has the legal right to defend the marriage law.

The panel has set aside 20 minutes for a challenge involving a 2012 ruling in Hawaii that upheld the state’s ban on gay marriage. Hawaii lawmakers later passed a measure giving gays the right to marry, but opponents of the court ruling upholding the ban want it removed from the books so it cannot be cited in other cases.

So far, three federal appeals courts have struck down bans in other parts of the country. A ruling by the 9th Circuit usually takes months, but a decision could come any day.

An attorney representing foes of same-sex marriage declined to comment.

Photo: sigmaration via Flickr

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Justice Marvin Baxter Of California Supreme Court To Retire

By Maura Dolan, Los Angeles Times

SAN FRANCISCO — Supreme Court Justice Marvin R. Baxter announced Wednesday that he will retire at the end of his current term in January, opening the way for a more liberal majority on the state’s highest court.

Baxter’s departure will give Gov. Jerry Brown, if re-elected, three seats on the seven-member court, which for decades has had only one Democrat.

Brown appointed Justice Goodwin Liu earlier this term and has yet to fill a vacancy created by the departure of Justice Joyce L. Kennard in April.

Brown’s appointees, along with Justice Kathryn Mickle Werdegar, a moderate Republican appointee, could form a new majority in contentious cases.

“This is a game changer,” said Santa Clara University law professor Gerald F. Uelmen, an expert on the court. “I think it is going to have a significant impact.”

The court now has no Latinos or African-Americans, and Brown could change that all at once.

Baxter, 74, a native of Fresno County, is considered the most conservative member of the court. He has long been counted as a reliable vote for prosecutors and business, but he is not viewed as an activist. His rulings tend to be limited to the issues at hand, and he does not reach out to broaden their scope. He also is regarded as a procedural stickler who relies on the plain meaning of the laws.

Known within the court as a consummate gentleman, Baxter has worked respectfully with colleagues of differing views and has not allowed disagreements to become personal.

“He was the anchor of the conservative wing, very consistent, very predictable, and he was a workhorse,” Uelmen said. “He consistently led the court in the production of majority opinions, and his opinions were quite well-crafted.”

In an interview, Baxter said he wanted “to open a new chapter” and fill it with family, travel and hobbies, which includes restoring antique cars.

“We have four grandchildren, ages 17, 16, 15, and 14, a senior, a junior, a sophomore and a freshman in high school,” Baxter said. “We certainly want to keep in close contact with them. I have offered to be a chaperon, but no takers yet.”

Baxter grew up on his family’s farm in Fowler, Calif., and began his legal career in 1967 with a two-year stint as a Fresno County prosecutor. He practiced civil law for 13 years before then-Gov. George Deukmejian made him his appointments secretary in 1983.

Deukmejian appointed Baxter to the state Court of Appeal in 1988 and elevated him two years later to the Supreme Court.

Baxter declined to discuss his favorite rulings — “I have really never kept a hit parade of opinions” — or rulings he now wishes he had written differently.

He opposed legalizing same-sex marriage in 2008, and joined five of his colleagues the following year in voting to uphold Proposition 8, the ballot measure that reinstated the marriage ban.

The U.S. Supreme Court has twice rejected Baxter rulings, Uelmen said. In 2006, Baxter wrote a 4-3 decision in People vs. Brendlin, which denied a passenger in a car stopped by police the right to challenge the detention as a violation of search and seizure. The high court later overturned the ruling, concluding the passenger could challenge the stop.

In People vs. Frazer, a 1999 decision that split the court 4-3, Baxter wrote that prosecutors could bring charges for child sexual abuse under an extended statute of limitations enacted after the expiration of the original deadline. The U.S. Supreme Court later repudiated that holding.

Among his best rulings, in Uelmen’s view, was last year’s City of Riverside vs. Inland Empire, which held that the state’s medical marijuana law does not prevent local governments from regulating cannabis dispensaries within their boundaries.

“It was so clear,” Uelmen said. “It didn’t leave any ambiguity, and I think he was right on the law.”

Chief Justice Tani Cantil-Sakauye said she would miss Baxter’s “sage advice” on the court and on the Judicial Council, which sets policy for the statewide court system.

Among the contenders mentioned by judges as possible successors to Kennard and Baxter are Thomas Saenz, the Los Angeles-based president and general counsel of the Mexican American Legal Defense and Educational Fund; Stanford University law professor Mariano-Florentino Cuellar; Jeffrey W. Johnson, an African-American state appeals court justice; and U.S. District Judges Edward J. Davila and Yvonne Gonzalez Rogers, both Obama appointees.

Other candidates Brown may be eyeing include: Justice Miguel Marquez, a former county counsel Brown appointed to the state appeals court; Elena Duarte, an appeals court justice; Rachel Moran, dean of UCLA School of Law; Kevin Johnson, dean of UC Davis School of Law; and Court of Appeal Justices Martin Jenkins, Maria P. Rivera and Dennis M. Perluss.

If Brown appoints Baxter’s successor before Sept. 15, the nominee would go before voters in November for confirmation to a 12-year term.

Photo via WikiCommons

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Signature-Drive Sponsors Can Remain Anonymous, Appeals Court Says

By Maura Dolan, Los Angeles Times

SAN FRANCISCO — A federal appeals court struck down California election requirements that require backers of proposed ballot measures to reveal their identities on signature-gathering petitions.

In a 2-1 decision, a U.S. 9th Circuit Court of Appeals panel ruled Monday that the First Amendment permits initiative sponsors to remain anonymous while contacting voters.

“Voters who wish to know the identities of official proponents need only make a trip to the City Clerk’s office or search for the publication of the petition in their newspapers of general circulation,” Judge Diarmuid O’Scannlain, a Reagan appointee, wrote for the majority.

The case stemmed from attempts by the construction industry to put a measure on the Chula Vista ballot prohibiting the city from using funds for projects that required union labor. The initiative eventually made the ballot and passed, but the litigation over earlier technical violations continued.

Backers of the proposal argued they should not have been required to disclose their names on petitions, as required by California law. An initial attempt by the proponents to obtain signatures was thrown out because the petitions did not contain the sponsors’ names.

The majority said that by requiring sponsors to disclose their identities, the government was unconstitutionally regulating their speech.

In the context of political speech, it is important that a writer be permitted to be anonymous to prevent others from prejudging the writer’s message based on personal dislike, the majority said.

Judge Susan Graber, a Clinton appointee, dissented.

“The government has an essential interest in preserving an electoral process that allows voters to know to whom they are delegating lawmaking power when signing a particular petition,” she wrote.

Photo: Joe Shlabotnik via Flickr

Cutbacks In California Court System Produce Long Lines, Short Tempers

By Maura Dolan, Los Angeles Times

SAN FRANCISCO — California Chief Justice Tani Cantil-Sakauye remembers the moment she learned that the Kings County Superior Court had resorted to holding a garage sale to raise money.

“That was a day of extreme humiliation and embarrassment to me,” Cantil-Sakauye said.

During her three years as chief justice, recession-driven cutbacks in California’s huge court system have produced long lines and short tempers at courthouses throughout the state. Civil cases are facing growing delays in getting to trial, and court closures have forced residents in some counties to drive several hours for an appearance.

The effects vary from county to county, with rural regions hit the hardest but no court left unscathed. Governor Jerry Brown is expected Tuesday to announce his revised budget plan, which will determine whether more courthouses will have to close next year. Legislators from both parties have called on Brown to raise funding.

Unlike in federal court, it is impossible to file all cases electronically in most state courts, and fights regularly erupt in snaking lines at clerks’ offices. Telephone systems are antiquated, and there are not enough people to answer the calls. Court reporters who provide transcripts of hearings have been eliminated for civil cases in many counties, making it more difficult for the losing party to appeal.

Cantil-Sakauye said annual case filings have dropped by about 2.5 million statewide in the last few years, possibly because delays, higher costs and longer drives have discouraged users.

“I don’t believe we are becoming a more law-abiding, rule-following society,” she said. “But we have closed more than 50 courthouses and eliminated 3,900 full-time positions. So are people finally getting the message they shouldn’t bother to come to court?”

Retired Judge Stephen Jahr, who heads the court’s statewide administrative office, said delays in civil trials are approaching levels not seen since the 1970s, before laws were passed to speed up trial dates.

Without significantly more money in the coming year, civil cases “being filed today will not get to trial until five years, which is the mandatory dismissal date,” Jahr said. “We will be back to where we started 25 years ago.”

The picture is vastly different from the late 1990s, when the courts unified under one branch and funding shifted from counties to the state. New courthouses were planned. A computer system that was supposed to link all the courts was ordered.

Then the economy took a nose dive. Cantil-Sakauye had been chief for only one month in 2011 when the state issued an audit blasting the judicial branch for spending $500 million on a computer system plagued with problems. The project has since been abandoned, but the scandal damaged the courts’ credibility with state legislators.

A dissident group of judges charged that the court’s San Francisco administrative office, which receives 3.8 percent of the $3.14-billion court budget, was wasteful. Legislators have approved a pending audit of the office, and Cantil-Sakauye said she has trouble dispelling suspicions that it was hiding “buckets of money.”

She said she has a good relationship with Brown. “I enjoy his company, and he is always available,” she said. “He listens but never commits. … He is a person who thinks big ideas, he talks about the court reinventing itself by restructuring or becoming more efficient.”

She said she agrees the courts should not be “static,” but noted that some efficiencies require upfront investments to save money down the road.

H.D. Palmer, a spokesman for Brown’s Department of Finance, said the state has tried to ensure courts were maintained “at a relatively stable level in recent years.” Other state services fared worse, he said, and also are clamoring for more money.

Brown’s budget proposal concedes the coming year will be “challenging” for the courts. He has proposed a $105-million increase, which judicial leaders say is not enough to prevent more court closures and cutbacks. The local reserves courts tapped into in the past to cushion state cuts are now gone.

Cantil-Sakauye said the courts need an additional $266 million “just to tread water” in the coming fiscal year, $612 million to be fully functional and $1.2 billion over three years to make up for past cuts.

Many court delays stem from staff shortages. Legal documents pile up, delaying judgments. Clerks in Contra Costa County said they have received complaints from people who divorced and wanted to remarry but couldn’t because clerks had not yet processed the paperwork for judges’ signatures.

Presiding Contra Costa County Superior Court Judge Barry P. Goode said he discovered 20 feet of unfiled civil law documents in a clerk’s office. Judges complained that they did not have the files before them when cases were called.

“It makes your heart sick to see what we have done to the courts,” said Goode, surrounded by unfiled legal documents in the Martinez court.

The number of public windows and their hours have been slashed at courthouses throughout the state.

The lines are so long at the Martinez courthouse that Cookie Gambucci, who files legal documents for lawyers, now brings stickers and toys for the children of parents waiting in line. “I am waiting two to three hours, and I can’t stand babies crying and parents wanting to beat their children,” Gambucci said.

Los Angeles County is down 80 courtrooms and has eliminated court reporters in civil cases. Getting a trial for a traffic case can take a year. Trials on civil matters may require a two-year wait.

“The result of all this is delays and backlogs,” Presiding Judge David S. Wesley said. “I have long lines all over the county.”

In San Bernardino County, the Superior Court has stopped summoning jurors from Needles, making the guarantee of a jury of one’s peers elusive. Because of court closures in the high desert, a trip to court from Needles can take some residents 3{ hours.

“We are really on the borderline of a constitutional crisis,” said Marsha Slough, the county’s presiding judge. “We have victims who want to give up because they don’t want to testify in criminal trials because of the driving distances and costs.”

The county has closed four courthouses, scaled back hours in a fifth and remains short 600 employees, Slough said. Poor high-desert communities were the most affected.

A change in a child custody order can take at least four months because of lack of staff, Slough said. “This is a lifetime for a child,” she said.

At the Victorville branch, people without lawyers who need help take a number and wait. A sign warns those waiting that they may not be seen that day. Mario Campos, 43, said he had been in line an hour and a half to get help with a divorce. About 10 people were still ahead of him.

“It is a long time, but it is a lot faster than usual,” said Campos, a pizza delivery driver.

Kerrie Justice, a family law attorney, said one of her clients has been waiting nearly three years to resolve a child custody dispute because of court closures and judge reassignments. “This case should have taken a year,” Justice said.

Victorville criminal defense lawyer Brendon Atwood said there aren’t enough judges to handle the caseload. “You may get 30 seconds of the court’s time instead of six or seven minutes,” he said.

Virginia Turner, the mother of a teenage girl who was attacked at her school, said her daughter went to court in Richmond in October to obtain a domestic violence restraining order. The girl’s lawyer discovered the court had stopped providing reporters to transcribe such hearings.

With the judge’s permission, the lawyer turned on her cell phone to record the alleged attacker’s testimony. But it didn’t pick up his words, and his statements could not be used against him in a later proceeding, Turner said.

Photo: Steve Rhodes via Flickr
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California’s High Court Gives Judges More Leeway In Sentencing Juveniles

By Maura Dolan, Los Angeles Times

SAN FRANCISCO — The California Supreme Court decided Monday that teenagers may be sentenced to life without parole for some crimes, but judges also are free to hand down lighter sentences of 25 years to life.

Prior to the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of certain offenses. The decision overturned decades of lower-court rulings.

The court’s action gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.

The court said the sentences should be reviewed because they were handed down before the court clarified state law and before the U.S. Supreme Court ruled in 2012 that judges must consider a juvenile’s immaturity and capacity for change.

The ruling, written by Justice Goodwin Liu, stemmed from appeals in two separate cases.

In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif Moffett was convicted of murder, robbery and driving a stolen vehicle.

Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole.

In the other case, Luis Angel Gutierrez killed his uncle’s wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or to attempting to rape her.

“Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence,” wrote Justice Goodwin Liu for the court. “The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to re-enter society.”

Some juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 “Crime Victims Justice Reform Act.”

State appeals’ courts ruled that the law required judges to favor imposing life without parole over a life sentence that allowed for release after 25 years.

For two decades, those rulings stood.

But Monday’s decision said the lower courts had erred in the interpretation of the law.

“Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances,” Liu wrote.

But he said neither the wording of the ballot measure nor any of the official analyses resolved whether “the initiative was intended to make life without parole the presumptive sentence.” The court concluded it was not.

Four justices wrote separately to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. In that ruling, which involved 14-year-olds, the high court said it expected life without parole to become uncommon for juveniles.

Photo: Steakpinball via Flickr

Grand Jury Indicts California State Senator Leland Yee, 28 Others In Corruption Probe

By Maura Dolan, Los Angeles Times

SAN FRANCISCO — A federal grand jury indicted 29 suspects, including California state Senator Leland Yee, with a wide range of crimes, including firearms trafficking and public corruption, U.S. Attorney Melinda Haag announced Friday.

Yee, a Democrat who represents parts of San Francisco and San Mateo County, and other suspects were arrested last week on a criminal complaint that outlined the charges behind the grand jury indictments. Yee was indicted for corruption, wire fraud and gun trafficking, the same charges laid out in the complaint.

The indictment said Yee solicited campaign contributions from undercover FBI agents and promised political favors in return. The alleged favors included a letter of endorsement on Yee’s state Senate stationary and a state proclamation.

A grand jury indictment means the defendants will not be entitled to a preliminary hearing in which testimony would be taken and a judge would determine whether there was sufficient evidence for a trial.

If convicted, Yee would face more than 100 years in prison and more than $1 million in fines.

Other suspects, including a reputed San Francisco Chinatown gang leader, were charged with money laundering, murder for hire, drug distribution and trafficking in contraband cigarettes.

Haag said the prosecution stemmed from a five-year investigation by the FBI, the Internal Revenue Service and the San Francisco, Oakland and Antioch police departments.

Photo: Karl Mondon/Bay Area News Group/MCT

Man Jailed Based On Mistaken Identity Can’t Sue, Court Rules

By Maura Dolan, Los Angeles Times

SAN FRANCISCO — A man jailed in Los Angeles County for a month because he was mistaken for someone with the same name and birth date lost a legal effort Wednesday to hold law enforcement agencies responsible for the mix-up.

A three-judge panel of the U.S. 9th Circuit Court of Appeals rejected claims by Santiago Rivera that the Los Angeles and San Bernardino County sheriff’s departments violated his constitutional rights when they arrested and held him based on a warrant for another man.

“The deputies were not unreasonable in believing that Rivera was the subject of the warrant at the time of arrest,” Judge Diarmuid F. O’Scannlain, a Reagan appointee, wrote for the court. “The name and date of birth on the warrant matched Rivera’s exactly. The height and weight descriptors associated with the warrant, although not matching Rivera exactly, were within one inch and 10 pounds of Rivera’s true size.”

The confusion began when the Los Angeles County Superior Court issued a warrant in 1985 for a Santiago Rivera who was wanted in connection with a fatal drunken driving incident. A different Santiago Rivera was arrested in 1989 on the warrant and spent a week in jail before fingerprints exonerated him.

Los Angeles court officials gave him a document showing he was not the subject of the warrant, but Rivera lost the paperwork years later when his wallet was stolen.

In 2009, San Bernardino County deputies again arrested the wrong Rivera based on the outstanding warrant. Rivera told the deputies he had been cleared, but he was incarcerated because he could not produce the form exonerating him.

After being transferred to Los Angeles County, Rivera again tried to clear up the mistake, but he had to stay behind bars until court officials located the fingerprints of the true suspect.

To prevent another mishap, the Los Angeles court added Rivera’s photograph and fingerprints to the case file and reissued the warrant with the true subject’s middle name, which differs from Rivera’s.

Judge Richard A. Paez, a Clinton appointee, agreed with most of the ruling but dissented on the grounds that Rivera deserved a trial on whether his due process claims were violated.

Paez said Rivera told deputies at the Los Angeles jail about the misunderstanding, and they failed to investigate. A quick search at the jail could have rectified the mistake, Paez said.

“Exonerating a jailer of any obligation to investigate once a court remands a detainee to custody is an unsound policy,” Paez wrote. “As this case demonstrates, if the detainee’s only recourse is to seek court intervention to verify his identity, he may languish in detention for weeks while the court searches its records for dated physical files.”

Casey Konstantín via

San Diego County Gun Law Violates Second Amendment, Court Rules

By Maura Dolan, Los Angeles Times

SAN FRANCISCO — A federal appeals court decided Thursday that a San Diego restriction on carrying concealed guns in public for self-defense infringes on citizens’ Second Amendment rights.

In a 2-1 ruling, a panel of the U.S. 9th Circuit Court of Appeals overturned San Diego County permit requirements because the court said they denied responsible, law-abiding citizens the right to carry concealed handguns in public for self-defense.

California generally prohibits carrying guns, whether loaded or not, in public locations.

But residents may apply for a license to carry a concealed weapon in the city or county where they live or work. To obtain licenses in San Diego County, residents must show “good moral character,” complete a training course and establish they have valid reasons for needing the gun.

The court said San Diego’s policy was too restrictive under the Second Amendment because it required applicants to show a specific concern for personal safety.

“Given this requirement, the ‘typical’ responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense,” wrote Judge Diarmuid O’Scannlain, an appointee of President Ronald Reagan. He was joined by Judge Consuelo Callahan, an appointee of President George W. Bush.

In a dissent, Judge Sidney Thomas, an appointee of President Bill Clinton, said the majority ruling “upends the entire California firearm regulatory scheme.”

Thomas said the majority had wrongly reasoned that because California bans the open carry of guns in most public areas, it must permit residents to carry concealed handguns in public without having to show specific concerns for personal safety.

In the case before the court, several people who were denied the right to carry a concealed handgun sued the County of San Diego. A judge ruled for the county. Thursday’s 9th Circuit decision overturned the trial judge’s ruling.

Photo: Rob Bixby via Flickr

Campaign Seeks To Expedite California Executions

Maura Dolan, Los Angeles Times

SAN FRANCISCO — Three former California governors are endorsing a proposed initiative for the November ballot that sponsors say would end lengthy death penalty appeals and speed up executions.

Former Govs. George Deukmejian, Pete Wilson and Gray Davis were scheduled to appear Thursday at a news conference to announce the launch of an initiative drive for signatures to qualify the proposed constitutional amendment for the ballot.

The measure, if qualified, would ignite the second statewide debate on the death penalty in California in two years. A ballot proposal that would have ended capital punishment in California narrowly lost in 2012, with 48 percent of voters in favor and 52 percent against.

The new proposal would establish five-year court deadlines for deciding death row appeals, transfer most death penalty cases from the California Supreme Court to lower courts, and allow capital inmates to be spread among the general prison population.

It also would require the condemned to work in prison, remove any threat of state sanctions from doctors who advise the state on lethal injection procedures and exempt the execution protocols from a state administrative law that requires extensive public review.

California has more than 700 people on death row, and the last inmate was executed in 2006. The state has no court-approved method of lethally injecting the condemned and drugs to do so have been difficult to obtain. The state also has had trouble recruiting lawyers who are willing to handle capital appeals, which can take decades before they are resolved in state and federal courts.

“The situation we have now is a travesty of justice,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and a backer of the measure. “If you look at the facts of these cases, you will see they are well-deserved sentences for horrible crimes and there is no reason to be spending 25 years waiting for justice.”

Santa Clara University Law professor Gerald Uelmen, who oversaw a state commission that advised lawmakers on capital punishment in 2008, said the new proposal contained provisions that were legally vulnerable to challenge and could raise costs without speeding up executions.

Uelmen’s commission determined that a lack of lawyers who are willing to handle legally mandated capital appeals was the primary bottleneck in the death penalty system. The proposed initiative provides no more money to hire lawyers for appeals and simply shifts the judicial burden from the state’s top court to the lower courts, Uelmen said.

Lawyers appointed by the intermediate courts of appeal to handle non-death-penalty cases would be required under the proposal to take on capital appeals as well. Uelmen said that provision would drive away qualified lawyers from taking any kind of case by appointment.

“This would muck up the system so much that it just might fall down of its own weight,” he said. “It doesn’t fix anything. It just makes the situation worse.”

But Scheidegger said the measure would make it easier to find lawyers because they would not have to meet as many qualifications. For example, a former prosecutor without any defense experience could be hired for a death row appeal if the measure passed, he said.

Chris Orrock, a consultant to the campaign, said it has raised about $350,000 so far and plans to rely heavily on volunteers from law enforcement to gather signatures. Signature-gathering campaigns for initiatives typically cost $750,000 to $2 million, and fundraisers are planned, he said. About 807,000 valid signatures are needed to qualify the measure and the campaign hopes to obtain as many as 1.2 million by the end of April or early May, he said.

Former Los Angeles County District Attorney Gil Garcetti, a sponsor of the unsuccessful 2012 measure to end the death penalty, said the new proposal, if passed, would trigger litigation that would cost the state millions of dollars. “I don’t think there is a prayer of a chance this is going to pass,” Garcetti said.

AFP Photo/Caroline Groussain